Shao-Yun Tseng v Tao Liu, Mr Cheese SA Holding Pty Ltd, Mr Cheese Central Kitchen Pty Ltd [2025] SAET 106

Cook grade 2 (wage level 3) means an employee who has the appropriate level of training and who performs cooking duties such as baking, pastry cooking or butchering.

Cook grade 3 (tradesperson) (wage level 4) means a commi chef or equivalent who has completed an apprenticeship or passed the appropriate trade test and who is engaged in cooking, baking, pastry cooking or butchering duties.

Cook grade 4 (tradesperson) (wage level 5) means a demi chef or equivalent who has completed an apprenticeship or passed the appropriate trade test and who is engaged to perform general or specialised cooking, butchering, baking or pastry cooking duties or supervises and trains other cooks and kitchen employees.

1. Ms Tseng was initially employed as a casual without a written contract but later signed a written contract. Up until 15 October 2024, she worked as a casual employee, performing cooking duties including baking and pastry cooking. On 16 October 2024, she became a full-time employee undertaking the same work.
2. From 1 April 2024, until the date of her resignation on 2 April 2025, she performed higher duties. These comprised of preparing ingredients according to menu specifications and health regulations; operating ovens, mixers, and other baking equipment; decorating and finishing baked goods to a high standard; maintaining kitchen hygiene and safety standards; communicating effectively, particularly about health and safety, hygiene, and quality control issues; managing stock levels and store perishable foods properly in temperature controlled facilities; training and supervising junior kitchen personnel on pastry skills and procedures; and ensuring product quality and consistency between batches.
3. Over this period of her employment with Mr Cheese Central, Ms Tseng completed a Certificate IV in Patisserie and Diploma in Hospitality Management.
4. Based upon the Award classifications for the period from 27 March 2023 to 20 July 2023, Ms Tseng's work duties fell within Grade 2 wage level 3. This entitled her to be paid $29.40 per hour for ordinary hours with a loading of $3.71 per hour for hours or part hours worked between midnight and 7.00am; $35.28 for hours worked on Saturdays; and $41.16 for hours worked on Sundays. Ms Tsengs's payslips for this period show that she was paid a flat rate of $25 per hour. In fact she was paid $21.50 per hour.
5. Having completed a Certificate III in Patisserie during this time, from 21 July 2023 until 22 October 2023, her work duties fell with the Grade 3 wage level 4. This entitled her to be paid $31.09 per hour for ordinary hours with a loading of $3.93 per hour for hours or part hours worked between midnight and 7.00am; $37.31 for hours worked on Saturdays; and $43.52 for hours worked on Sundays. For this period Ms Tseng was paid a flat rate of $28.50 per hour.
6. Having commenced as a full-time employee on 23 October 2023, from then until 31 March 2024, her work duties fell with the Full-time Grade 3 wage level 4. This entitled her to be paid $26.75 per hour for ordinary hours with a loading of $3.93 per hour for hours or part hours worked between midnight and 7.00am; $32.73 for hours worked on Saturdays; and $39.27 for hours worked on Sundays. For this period Ms Tseng was paid a flat rate of $26.75 per hour.
7. From 1 April 2024, until her resignation, her work duties fell with the Grade 4 wage level 5.
8. For the period up until 30 June 2024, this entitled Ms Tseng to be paid $27.83 per hour for ordinary hours with a loading of $3.93 per hour for hours or part hours worked between midnight and 7.00am; $34.79 for hours worked on Saturdays; and $41.75 for hours worked on Sundays. For this period she was paid a flat rate of $25.00 per hour.
9. Following a wage increase in the Award, for the period from 30 June 2024, this entitled her to be paid $28.87 per hour for ordinary hours with a loading of $4.08 per hour for hours or part hours worked between midnight and 7.00am; $36.09 for hours worked on Saturdays; and $43.31 for hours worked on Sundays. For this period Ms Tseng was paid a flat rate of $25.00 per hour.
10. All up the shortfall in wages is $29,665.56.
11. Over this time, Ms Tseng also performed overtime for which she was not paid. The amount due is $2,820.37.
12. Upon becoming a full-time employee, she accrued annual leave. She did not receive this and was not paid. The amount due is $3,680.96.
13. No superannuation was paid on her behalf. The contributions should have been $10,732.36.
14. On 24 June 2025, this Court entered judgement in favour of Ms Tseng against Mr Cheese Central in connection with her claim for underpayment of wages in the sum of $36,166.89 and in connection with her claim for non-payment of superannuation contributions under the Superannuation Guarantee (Administration) Act 1992 in the sum of $10,732.36. Further consideration for any claim for penalties to be imposed on Mr Cheese Central and Mr Liu under the FW Act was adjourned.
15. Plainly a factor relevant to what, if any civil penalties would be imposed, would be the response to the judgment. As it was, no payments have been made.
16. This case bears striking similarities to other recent cases involving Mr Cheese Central and Mr Liu.
17. In Tzu-Chi Lin v Mr Cheese Central Kitchen Pty Ltd & Ors[1] this Court found that Tzu-Chi Lin was an employee of Mr Cheese Central and was underpaid for the period of her employment there between 1 September 2020 and 2 April 2025 and received no superannuation contributions. All up the claim for underpaid wages including overtime, annual leave and superannuation was the aggregate sum of $34,617.81.
18. In Wanyin Wang v Mr Cheese Central Kitchen Pty Ltd[2] this Court found that Wanyin Wang was an employee of Mr Cheese Central and was underpaid for the period of her employment there between 25 October 2023 and 30 March 2025 and received no superannuation contributions. The claims in that case were underpayment of - $18,741.13, unpaid overtime - $2,930.58, unpaid annual leave - $5,428.67, and unpaid superannuation - $13,555.75.
19. In Meng-Cin Li v Mr Cheese Central Kitchen Pty Ltd & Ors[3] this Court found that Meng-Cin Li was an employee of Mr Cheese Central and was underpaid for the period of her employment there between 26 December 2022 and 28 March 2025. The claims in that case were underpayment of wages underpayment of wages - $22,997.16, unpaid overtime - $3,443.24, unpaid annual leave - $3,392.23 and unpaid superannuation - $9,526.13
20. In Tzu-Chi Lin v Mr Cheese Central Kitchen Pty Ltd & Ors[4] Crawley DPJ wrote:

This decision is one of several before me relating to the same respondents. The conduct complained of was not isolated in time or in those affected.

At the time of offending, it appears the employer was involved in a substantial business enterprise.

The conduct could not have been other than deliberate.

There has been no suggestion of apology or contrition for the actions of Mr Liu and the employer.

The respondents have not complied with any orders made in the proceedings.

No corrective action has been taken.[5]

1. The same is true here.
2. In assessing penalty, Crawley DPJ made the point that "It is important that employers, and those who stand behind them, should not see pecuniary penalties as just another cost of doing business. The penalty imposed must be large enough to act as a true deterrent to such an approach".[6]
3. In each case, Crawley DPJ imposed a civil penalty upon Mr Cheese Central of $180,000. He also imposed a civil penalty upon Mr Liu of $61,380.
4. As a general proposition like cases should result in like outcomes. I say 'general proposition' because despite similarities, sometimes there are important differences between the facts of cases that warrant different outcomes. And there will be occasions where in connection with a subsequent case, a Court will conclude that it should refuse to follow a previous decision.
5. But leaving those exceptions to one side, consistency with outcomes should be seen as the norm.
6. In Nevistic v Minister for Immigration and Ethnic Affairs Deane J stated:

There are many reasons for the desirability of consistency in the making of decisions affecting rights, opportunities and obligations under the law. Paramount amount (sic) them is the fact that inconsistency in the treatment of those amenable to the law involves an element of injustice. Particularly where there is competition or correlativity between right, advantages, obligations and disadvantages, equality of treatment under the law is an ingredient of modern concepts of justice and the rule of law.[7]

1. To like effect was that statement by Brennan J (as he then was) in Re Drake v Minister for Immigration and Ethnic Affairs (No 2) where he said:

Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice.[8]

1. As can be seen from the summaries set out above, the facts in this case are virtually indistinguishable for those in the recent cases decided by Crawley DPJ and there is no justification in coming to a different outcome based upon any factual differences. As with the other cases, the reasonable inference to draw is that the breaches of the FW Act occurred because of a calculated and deliberate scheme to deprive Ms Tseng of her lawful entitlements to wages and superannuation contributions. I see no reason not to adopt the same approach as was taken by Crawley DPJ in the other cases involving Mr Cheese Central and Mr Liu. Accordingly, I imposes a civil penalty upon Mr Cheese Central in the sum of $180,000 and I impose a civil penalty upon Mr Liu of $61,380. Both sums are payable to Ms Tseng.

[1] [2025] SAET 97.

[2] [2025] SAET 98.

[3] [2025] SAET 99.

[7] [1981] FCA 41; (1981) 34 ALR 639 at 646.

[8] [1979] AATA 179; (1979) 2 ALD 634 at 639.